Fourteenth Amendment Shootout at the Supreme Court
My, how the world has changed since 1990! The forces of gun control were on the advance everywhere — and, to be blunt, there seemed little prospect that the courts would stand in the way of either the federal or state governments. While the historical evidence that the Second Amendment protects an individual right “to keep and bear arms” is very strong, courts didn’t much care.
The Los Angeles Times has long been a supporter of the most absurdly restrictive gun control laws. This is no surprise; Los Angeles has a huge gang problem. The only realistic alternative to gun control is to fix the underlying cultural problems behind the gang problem — and that wouldn’t be very multicultural, would it? I therefore read this October 6, 2009, Los Angeles Times editorial with an enormously wide grin on my face. The best way to describe its contents is: “Please, be gentle with me. I won’t put up a fight.”
As the editorial explains, for about eighty years now, the Supreme Court has been imposing many (but not all) of the rights contained in the Bill of Rights onto the states. They have done so by arguing that the Fourteenth Amendment’s due process clause requires the states to recognize certain fundamental human rights that all persons enjoy. This method is called “selective incorporation.” It’s actually cherry-picking; the Court has identified certain rights that it considers so fundamental that the states must abide by them. Some of these are rights that are contained in the Bill of Rights (freedom of speech, freedom of religion, freedom from warrantless searches, freedom from cruel and unusual punishment). Others are rights that not only aren’t written down, but that the authors of the Bill of Rights — and of the Fourteenth Amendment — would have rejected completely (freedom to collect welfare without meeting residency requirements, freedom to engage in sodomy). Selective incorporation has left out the Second Amendment and the right to grand jury indictment, for example.
The evidence is reasonably clear that the authors of the Fourteenth Amendment understood that it would impose the full Bill of Rights onto the states — not through the due process clause, but through the provision requiring that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The Supreme Court effectively negated this privileges-or-immunities clause in The Slaughter-house Cases (1873). For a few years thereafter, the Court found various excuses to avoid recognizing the privileges-or-immunities clause in cases such as U.S. v. Cruikshank (1876), where to do so would have meant punishing Klansmen for mass murder in the Colfax Massacre.
“A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.”
So much trouble could have been avoided if the drafters of the constitution had just bothered to run that amendment past somebody with a grasp of clear language, grammar and readability.
Here’s something I don’t get … if there’s one thing that sentence does clearly say, it’s that in whatever circumstances it applies it definitely calls for absolutely NO infringements. How can it be possible to derive any laws that rule in or out specific types of weapons? There’s no leeway in that text. It doesn’t say “the right of the People to keep and bear arms of less than .5 inch caliber, but definitely not hand grenades”. That’s a bit of a problem, I reckon.
Nobody seriously believes that citizens should be allowed to buy and keep heavy artillery, mortars or katyusha rocket launchers – that would be seriously menacing to innocent people in the vicinity of a drug war (for example). But if you take the second amendment at face value, those weapons should be permitted. In reality, america’s gun laws are a fudge. They have to be. It’s disingenuous to argue about whether DC’s gun laws are unconstitutional, because ALL gun laws are unconstitutional, by definition. Judges who try to draw a line then claim one side is constitutional but the other side isn’t are kidding themselves and everybody else. Sure there’s a history of interpretation, and convention and all that – but the actual text of the constitution doesn’t literally support any of it.
So here’s the choice I see – either open the floodgates and respect the amendment as it was written, or admit that nobody actually follows it anyway and let the states regulate guns properly. Neither side of the gun debate actually wants the first option.
Yes, I know I haven’t quoted the 14th amendment. But lets be honest – it’s the 2nd amendment that we’re really talking about.
Privileges or immunities, definitely. While many liberals may claim that corporations ‘hold a gun to our heads’, the literal interpretation is (like much liberalism) just foolish.
I can see where this puts the two factions of the Supreme Court (“constructionist” and “progressivist”) between a rock and a hard place.
The constructionists, operating on the principle that the Constitution must be taken at “face value” like any other binding legal document, would no doubt follow the “privileges or immunities” route, which would guarantee the right of personal protection (the original thrust of the 2nd Amendment) to law-abiding citizens. This would establish the last (in the sense of “ignored until now”) Amendment in the Bill of Rights as inviolable, to the same degree as the First, Third, and Fourth. In short, it would not allow government at any level to “discriminate” where the rights of a citizen were concerned, even if government perceived a “desirable outcome” if they were permitted to do so.
The due-process course, which would be preferred by the “progressivists” who view the Constitution as subject to interpretation in light of their own (self-perceived) greater insight (than the Framers), would allow a more narrow definition of who would be able to exercise this right, in the sense that it would be conceivable that someone who had been denied it would be compelled to go to court to prove they had actually been harmed by the denial. (The courts, needless to say, could set the “bar of proof” as high as they pleased.)
By the same token, this course would make it possible for “classes” to be considered inherently entitled to this “privilege” (it would no longer be a “right” in the strict legal definition) based on their “perceived need”.
The “corporate” definition of a “legal existence as a person” comes into play here. Under this definition, it could be argued that corporate entities had an “inalienable right” to “keep and bear arms”, in the sense of arming their security forces to protect their employees and property against “attacks and outrages”, whether or not such offenses had previously occurred. The same could be said of any “organized group”, ranging from political groups to labor unions. In effect, it would (by a neat bit of philosophical jiujitsu) establish the “militia” definition of the “people” in the body of law.
I would not put it past the likes of Ginsberg, Sotomayor, etc., to try this tack, being willing to trade Blackwater the privilege of having a “well-regulated militia” in return for gaining the same power for the AF of L-CIO, UMW, SEIU, etc. In short, operating on the principle that such “militias” would inevitably be numerically superior on the “progressive” side. Strictly speaking, even organized gangs might qualify, providing they restricted issuance of arms to those members not having prior convictions, outstanding warrants, etc.
If you want to get some idea where this could lead, look at the Philippines in the early 1970s under Marcos. Heavily-armed gangs, on both ends of the political spectrum (radical leftists vs. radical rightists) carried out political “hits”, protected by well-connected political patrons. In effect, politicians had private armies. At the same time, ownership of firearms by “ordinary citizens” was absolutely verboten, with heavy legal penalties for violation of the law. (Don’t think fines, think life imprisonment at hard labor.)
I don’t say this would be guaranteed to be duplicated here, but the “due-process” interpretation would certainly make it possible.
My personal opinion is that the “privileges or immunities” construction is preferable on purely Constitutional grounds, but I will not be surprised if the “due-process” view prevails. If so, I expect that rather than bringing this argument to a conclusive end, it will simply result in more litigation. Assuming, that is, that in the future individual citizens, as opposed to favored “classes” or “groups”, retain the right to petition their government for redress of grievances.
I do not automatically assume that they, or rather we, will be so allowed. It depends on whether we have a government based on the body of law, or one based on the “inspirations” of those who define themselves as “wiser” or “better” than the rest of us.
I call the odds six-five (or maybe, in this case, five-four) and pick ‘em.
clear ether
eon
1. Matthew: “Nobody seriously believes that citizens should be allowed to buy and keep heavy artillery, mortars or katyusha rocket launchers….”
Shame on you, Matthew, for second-guessing our Founding Fathers! Don’t you know they foresaw ALL situations and ALL contingencies for ALL time, coast-to-coast? “Shall not be infringed” means just that. (The phrase “well regulated militia” is just an 18th Century expression meaning “A man’s home is his castle” — you could look it up!)
The best test of whether a weapon can be reasonably and legally owned by a private person is whether it can be used in a targeted, rather than an indiscriminate fashion.
“Adequate control” doctrine, which is the foundation of “clear and present danger” judgments, could be brought to bear on this. It’s vital to the solution of the “nuclear weapon chestnut.” It also bears on the exact relation of owner to property, but that’s a separate set of (highly involved and interesting) questions.
So much trouble could have been avoided if the drafters of the constitution had just bothered to run that amendment past somebody with a grasp of clear language, grammar and readability.
The only people who seem to have a problem with the clarity of the statement are those that posit such nonsense as “it depends on what the meaning of the word ‘is’ is”.
Dick the Butcher was prescient in his utterance.
5. Francis W. Porretto: “The best test of whether a weapon can be reasonably and legally owned by a private person is whether it can be used in a targeted, rather than an indiscriminate fashion.”
Exactly! So hands off my bazooka!
They can take away my hand grenades but I’m keeping the pins.
So much trouble could have been avoided if the drafters of the constitution had just bothered to run that amendment past somebody with a grasp of clear language, grammar and readability.
That’s because a committee created the final form, and to be blunt, most members of Congress thought this whole Bill of Rights thing was a yawner. They had important stuff to do, and were basically humoring James Madison and a few others who had run for Congress on the promise of getting some sort of Bill of Rights added.
A case could be made for citizens to own artillery and rockets. Case in point: dynamite. In most states is illegal to have dynamite without a permit, but dynamite has many excellent uses, primarily in mining and demolition.
Artillery is used by ski slope owners to cause ‘controlled’ avalanches and keep their mountainside safe. Rockets can do the same thing. In these cases the weapon also makes the task safer as nobody has to walk onto the unsafe snowpack, plant an explosive and get out of the way in time.
The penetrating power of a .50 cal rifle or even an Explosively Formed Penetrator has potential use for punching a hole in something at a safe distance like is done in EOD. Of course if you need something like that there were some poor design decisions made earlier.
I don’t like the rationale of ‘you may only have if you can demonstrate a legitimate use (however unlikely)’ but then again if you can’t think of a reason to have it why would you want it…
Squirrel Hunting with a Twelve-Pounder,
~Euler
1. Matthew: “Nobody seriously believes that citizens should be allowed to buy and keep heavy artillery, mortars or katyusha rocket launchers….”
Shame on you, Matthew, for second-guessing our Founding Fathers! Don’t you know they foresaw ALL situations and ALL contingencies for ALL time, coast-to-coast? “Shall not be infringed” means just that. (The phrase “well regulated militia” is just an 18th Century expression meaning “A man’s home is his castle” — you could look it up!)
The term “arms” is commonly defined by dictionaries of the time as those weapons of offense or defense that you can take in your hand. Warships, cannon, helicopter gunships, ICBMs, definitely outside the definition. Hand grenades (although really equivalent to a modern pipe bomb, because they were loaded with gunpowder) are pretty commonly owned in 1789. They are mentioned in fire safety ordinances and for sale in advertising circulars of the time.
There is a strong argument that from a functional standpoint, a modern handgun is roughly equivalent to its 1789 counterpart, for the same reason that a modern printing press is roughly equivalent to its 1789 counterpart–but a nuclear weapon has no 1789 functional equivalent–not even close.
And yes, there were repeating handguns in 1789. They weren’t completely reliable, but the technology wasn’t invented by Samuel Colt. He only perfected it.
I presume that biblio44 engages in the nasty remarks that he does is because he doesn’t know enough about the subject to engage in intelligent debate.
Keep in mind that the limiting factor with respect to artillery is usually cost. Few private citizens can afford artillery, and not just because of the $5 destructive device tax per round.
Of course, I know people who do own artillery. One acquaintance would get pulled over frequently in California when towing his 3″ bore cannon on a trailer. He suspected that the police were mostly just curious, but they would always ask him, “Do you have a permit for that?” And the answer was, “I don’t need one. It’s black powder!” And that’s true.
Most states don’t require permits for artillery, as long as it is black powder, because you know, it’s really hard to conceal a cannon under your coat when entering a liquor store or bank, and gangs, for the most part, haven’t seen much point in trying to do a drive-by from an adjoining city.
By the way: don’t assume that just because a cannon is black powder that it isn’t dangerous. My friend’s cannon was capable of very precise fire at 1000 yards, and had a maximum range of 1800 yards. And yes, there were suppliers of exploding cannonballs for it. (That might not be California legal, however.)
If the fascists who biblio44 seems to worship ever get stupid enough to try and set up a police state, I suspect that they will find out that even antiques, properly employed, have their uses. Look at what happened during the Romanian Revolution in 1989–stuff of World War II vintage was successfully used to overthrow the government.
I have always found EXTREMELY funny the fact that the marxist subversives want to disarm the American people at any cost.
This is so revealing of their true intentions !
They drug people with their populist slogans but they are truly scared by the “masses” that they supposedly want to lead to a revolution, and in the case of the trotskysts, a “permanent revolution”.
Revolution revolution…but they want to disarm the People !!!
Unbelievably funny !!!
Thank you for the opportunity to comment.
PS No, I’m not off topic: the trolls in the first few comments have already shown their colors (i.e., totalitarianism uber alles)and they need an answer that silences them (well, or that would silence them if they had a brain and could understand the implications…)
Arms shouldn’t be limited ti just fire arms. Bayonets, swords and other edged weapons were par for the course during that time and should be included today. These weapons are also more useful day to day. But in the state I reside it is illegal to have any blade longer then 3 inches and you can still be charged with a concealed weapon if have a pocket knife in your pocket. The quest to disarm the masses is at every level.
“1. Matthew:
Nobody seriously believes that citizens should be allowed to buy and keep heavy artillery, mortars or katyusha rocket launchers – that would be seriously menacing to innocent people in the vicinity of a drug war (for example). But if you take the second amendment at face value, those weapons should be permitted. ”
Matthew, the Second does not exist in a vacumn, there is more than plenty of historical documents, writings and precidence to understand what it means and to what weapons it applies.
Note in US vrs Miller , SCOTUS remanded back down to the lower court to determine if a sawed off shotgun had military use. Never in question was the individual right of a bootleger(Miller) to have a weapon but rather was that weapon of military grade. If it were not, then SCOTUS in Miller seemed inclined to let States pass laws restricting it’s use.
Which seems rediculous. If one may own a weapon that a modern soldier would be issued as his personal weapon the why let the State restrict lessor weapons.
Any rate, below is a reply I made in another forum.
I note you bring up original intent. In doing so , if you spend any time researching the Second, you will find that there is no intent for unlimited ownership of any and all military weapons.
The cliff note version I will supply.. in what limited fashion I may. In short, in order to provide the State with the ability to call up and place under command( well regulated) militia. It was found necissary that every freeman(individual) to own a weapon(preferably cutting edge tech) needed to do battle with opfor individuals.
In a nod to todays tech where one man could field a weapon needed to bring down a jet(jetliner) it is imperative that one understands the difference between a crew served weapon and a individual weapon. Traditionally the State provided crew served weapons.. Knights on Horses, Trebuchets, artillary, tanks, yada yada. Traditionaly it took another crew served weapon to defeat such. Certainly in the right circumstance an Individual armed person/persons could do the trick. But I digress. The individual weapon was a sword, pike, bow/crossbow, musket, rifle, grenade, assault weapon M-16/Ak47, and in the future.. Ray Guns.
So it is well within consideration that the original intent(and historical background) never intended one to own a nuke, or stinger missile which could take out a City or jetliner.
Real short answer, the Individual Right to keep and Bear Arms stops short of owning arms which threaten the State if in only one or few hands. That is to say the level of scutiny SCOTUS should use in interpreting the Second is the same as the First.. Strict Scutiny.. “Compelling State Interest”.
Clearly we are allowed.. nay mandated to own a M-16 at this time. firearms capable of automatic or burst fire are intrinsic to the individual on todays battlefield.
You really do need to remember the history of the United States in order to recognize the importance of the 2nd Amendment. The reason laws should not and cannot be made against weaponry of all types is because of the government. The point of a well-regulated militia is to protect the people of the country. That’s true whether it’s some foreign country invading (“Wolverines!”) or it’s the government turning into 18th-century Great Britain.
As an aside, I think (and this is just my own opinion, so I have no facts to back it up) that one could look at today’s US government and 18th-century Great Britain and see that it only took 200-some-odd years for the current government to be worse than the historical one.
One thing for us all to bear in mind when considering the original intent of the 2nd Amendment is the fact that it was drafted by successful revolutionaries who were justly afraid of overly centralized governments & governments that became destructive to the liberties of the people. It was for these two causes (oppressive & overly centralized gov’t) that they rebelled to start with.
Thomas Jefferson wrote in the Declaration of Independence that the people have the right to overthrow such governments.
THUS, the purpose of the 2nd Amendment was to guarantee that the people had the capacity to overthrow the government should it become destructive to the rights that the revolutionaries of 1776 had fought for. It’s not about hunting or plinking at the gun range on Saturday afternoons. It’s about making sure the government knows that there is an armed populace that can & will preserve its rights against intrusive & oppressive acts.
I believe it was Thomas Jefferson who noted that governments are at their best when they fear the people, and at their worst when the people fear them.
“The best test of whether a weapon can be reasonably and legally owned by a private person is whether it can be used in a targeted, rather than an indiscriminate fashion.”
I’d suggest that we use the Article 1 Section 8 test. The missions of the militia are constitutionally defined. Namely…
“To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;”
So, to the extent that weapons are useful for these missions, they should be protected by the 2nd. Use by government employees to carry out these missions (saps, tasers, tear gas, etc. by the police for law enforcement purposes ["execute the Laws"]) indicates legality for citizen possession and carry on its face. Further tests MIGHT limit these to weapons which can be carried by a person (“bear”).
It should be noted in the context of historical usage, that the English right to bear arms was much more limited from the beginning, and the clear intention of the founders was NOT to create a privileged class of nobles, with rights to arms different than of other classes of citizens. Hence the prohibition on titles of nobility found in Article 1 Section 9 bears on the 2nd Amendment. It is beyond my ability to imagine why some would find that the people’s employees should have rights superior to those of the citizens. This of course, is the case today, more is the pity.
Actually, the term he used was “duty”, not “right”.
Clayton,
“Keep in mind that the limiting factor with respect to artillery is usually cost. Few private citizens can afford artillery, and not just because of the $5 destructive device tax per round.”
Interesting point. As you have undoubtedly pointed out, pre-Civil War America was filled with volunteer militia companies, incorporated under the militia acts of various states, that could, and did, receive not only small arms but artillery pieces from the federal government. Most of these militias were little more than uniformed “marching and chowder societies” and were shockingly undertrained, but, hey, Washington didn’t have a problem with them because they were cheap and defrayed their own expenses for uniforms and equipment.
In my town, here in Indiana, in June 1859 a local militia company applied for, and received by rail shipment from a U.S. ordnance depot, a 6-pounder cannon. This piece was periodically used for entertainment effect right up to the beginning of the Civil War at which time it was appropriated by the Indiana state government and shipped south to defend the Ohio River. The only “casualty” inflicted by this cannon during the time it was in the company’s possession was when one of the cannoneers lost an arm due to premature detonation accident (all too common in those days). This affair was good for one or two newspaper articles–no big deal.
In response to Michael Chaney: It is also interesting that the officers of the US armed forces take and oath to defend the constitutiion of the the US; not office holders. Furthermore: against all enemies of said constitution, both foreign and DOMESTIC.
Most of these militias were little more than uniformed “marching and chowder societies” and were shockingly undertrained, but, hey, Washington didn’t have a problem with them because they were cheap and defrayed their own expenses for uniforms and equipment.
It wasn’t just cheapness; there was a widespread belief in the Revolutionary, Constitutional, and Early Republic periods that standing armies were a necessary evil, and it was best to rely on the militia instead, because it would not become a tool of ambition or oppression. For example, the New York Adjutant-General described in 1832 how unusual the U.S. militia system was compared to other countries:
The report also argued “it is doubted by the most sagacious observers whether our civil liberties could be maintained for a length of time without the influence and protection of a militia.” What made the militia “dangerous to the existence of an arbitrary government, render it indispensable to the existence of ours.” Finally, the report draws the connection to the Second Amendment:
Now, this may well have been a triumph of theory over practice. Militias did indeed degrade rapidly after the War of 1812 into social organizations in the North. But this was how they thought back then.
Lawrence v. Texas and Griswold v. Connecticut and Roe v. Wade recognized a Constitutionally non-enumerated human right to privacy so strong that prophylaxis using condoms as protection against disease in consensual sexual acts, choice of adult consensual sexual partners, and abortion of results of consensual sexual acts were removed from state legislative purview.
Heller recognized a Constitutionally non-enumerated human right to self defense against non-consensual violent acts, a right pre-existing the Constitution, realized through the enumerated Constitutionally enumerated right of keeping and bearing of arms by individual citizens.
Any court that says IUDs to protect against pregnancy from consensual sex acts is a more inherent right than the means of self protection against violent nonconsensual attacks is insane.
@ Matthew: “Nobody seriously believes that citizens should be allowed to buy and keep heavy artillery, mortars or katyusha rocket launchers – that would be seriously menacing to innocent people in the vicinity of a drug war (for example). But if you take the second amendment at face value, those weapons should be permitted.”
There was very little difference between military arms and what could be found over the average mantle when the second amendment was drafted. Granted, the average individual would not have owned a piece of artillery, but state and citizens’ militias certainly could have.
It has always seemed to me that the purpose of the second amendment was to create an armed civilian population (similar to what was organized in order to carry out the revolution) so that another revolution and overthrow could be effected should the new government prove as tyrannical as the old. In other words, the 2nd was supposed to guarantee that the people could take on the army (and win) if necessary.
It seems rather extreme to us today, but when the 2nd amendment was written that kind of tyranny was a real concern. Perhaps it still is and we are just uncomfortable (or too uninformed) to admit it.
I’m not advocating revolution, but why is it the government feels entitled to act with impunity as regards the will of the people? Why is it we have elected representatives who look their constituents in the eye and tell them they don’t care what they think, that the politicans are going to do as they please anyway (I believe it’s Lautenberg I’m thinking of)? The founders would tell you it’s because the government is no longer afraid of us.
I would very much like to see some of the “reasonably clear” evidence that “the authors of the Fourteenth Amendment understood that it would impose the full Bill of Rights onto the states” through the P&I clause–and thus absolutely destroy any meaningful federalism in the Republic.
I do not believe “reasonably clear” evidence of this exists. Incorporation is a fictitious doctrine used to advanced statism and nothing else.
Why, for example, did the 14th’s authors use “privileges and immunities” instead of “rights,” when they so obviously would have meant “rights” if the proponents of incorporation are correct?
I’ve been curious, with respect to the 2nd, as to how one should think about the crew served cannons on a privately owned civilian ship engaged in commerce during the Founder’s era.
My presumption is that this would have been fairly common in at least some areas.
Any one have insight on this?
It was not unusual for individuals, either singly or in consortium, to possess “crew-served” weapons at the time of the Revolution: Citizen Militias possessed cannon, and individuals in consortium possessed “Men of War” aka “Privateers” who operated under “Letters of Marque”.
Today, as Clayton noted above, with the proper permits (if required) one may possess artillery & machine guns – in fact, one may possess jet aircraft (been to Oshkosh lately?) – which reminds me of an incedent on an L.A.Freeway recently: After pulling on, I was passed by a 5th-wheel rig that on the trailer had a Mig-15 with the disassembled wings strapped to the sides of the fuselage.
But, to the point of my comment:
I would favor the court re-discovering the P&I clause as it would force the States to recognize the CCW’s issued by each other in the same manner that they recognize Drivers’ Licenses (or, even better, it might obviate the need for a CCW altogether).
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Actually the part of the D o I you refer to uses both words: ” it is their right, it is their duty, to throw off such government”
I would very much like to see some of the “reasonably clear” evidence that “the authors of the Fourteenth Amendment understood that it would impose the full Bill of Rights onto the states” through the P&I clause–and thus absolutely destroy any meaningful federalism in the Republic.
Start here.
The authors of the 14th Amendment intended to destroy the authority of the Southern states to deny fundamental human rights to both blacks and white Republicans. They saw it as an explicit repudiation of not only the Dred Scott decision, but even Barron v. Baltimore. I’m finishing up a law review article on the subject at the moment; we are not at all short of evidence that many abolitionists even before the Civil War saw this as a goal.
I do not believe “reasonably clear” evidence of this exists. Incorporation is a fictitious doctrine used to advanced statism and nothing else.
Huh? Quite the opposite. Full incorporation, by limiting the power of state and local governments to infringe on the fundamental freedoms of individuals defined in the first eight amendments, is an anti-statist philosophy. The selective incorporation model through the due process clause, has certainly been used to advance statism in places (such as wiping out welfare residency requirements)–but often as not, it has struck down governmental power.
Why, for example, did the 14th’s authors use “privileges and immunities” instead of “rights,” when they so obviously would have meant “rights” if the proponents of incorporation are correct?
Because Art. IV, sec. 2 of the U.S. Constitution already said: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
Nicely done, sir.
One quibble, if you don’t mind. Incorporation against the states won’t matter if the Supreme Court waters down the standard of review.
Suppose Minnesota adopts a law saying no person who ever lived in Somalia can possess a gun. Suppose further the US Supreme Court says yes, having a gun is a fundamental right, but it’s not very fundamental, only slightly fundamental.
“We’re not going to give Second Amendment cases Strict Scrutiny. We’re not going to require the state to prove it has a compelling governmental interest, that this remedy is narrowly tailored to achieve that interest, or that this law is the least restrictive means. We’d apply that standard to an extremely fundamental right, like killing babies, but not to defending yourself and your family.
“In fact, we’re not even going to require the state to prove that it has an important governmental interest and that this law is substatially related to that interest, what you might call Intermediate Scrutiny. We’d apply that standard to middling fundamental rights like sex discrimination but not to slightly fundamental rights like self-defense.
“No, we’ve decided that the rights protected by the Second Amendment are fundamental rights and are incorporated against the states, but if the states can show this regulation is rationally related to a legitimate government interest. And since any fool can cobble together an argument that passes that test, the law stands.”
That’s the real risk. And the real battle. Your thoughts, sir?
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I’ve been curious, with respect to the 2nd, as to how one should think about the crew served cannons on a privately owned civilian ship engaged in commerce during the Founder’s era.
My presumption is that this would have been fairly common in at least some areas.
Many merchant ships in this era were armed. Whether this was a right or simply good sense is unclear. In any case, the definition of arms in that period excludes ships, unless you are very, very strong.
I would favor the court re-discovering the P&I clause as it would force the States to recognize the CCW’s issued by each other in the same manner that they recognize Drivers’ Licenses (or, even better, it might obviate the need for a CCW altogether).
Eliminating carry permits isn’t going to happen, largely because when the 14th Amendment was ratified, while just about every state recognized that open carry was a right (Arkansas being the exception), many did not recognize concealed carry as a right.
I suspect what will finally fix this problem will be when the Court recognizes that open carry is a right–or at least hints that states that don’t provide some relatively easy way for law-abiding citizens to carry concealed is going to have to allow open carry. And that will fix the problem in a hurry.
Nicely done, sir.
One quibble, if you don’t mind. Incorporation against the states won’t matter if the Supreme Court waters down the standard of review.
Suppose Minnesota adopts a law saying no person who ever lived in Somalia can possess a gun. Suppose further the US Supreme Court says yes, having a gun is a fundamental right, but it’s not very fundamental, only slightly fundamental.
The whole question of strict scrutiny, as Chief Justice Roberts pointed out during the oral arguments for Heller, are a modern invention. I would argue that they are a pretense that allowed the more liberal Supreme Courts of the last 40 years to decide, “Some rights are really fundamental, so you can’t fiddle with them (like ones involving sex and abortion), but other rights, like property and equal protection will have a sliding scale that we get to define as we find convenient for the case before us.” If a right is fundamental, why is “compelling governmental interest” sufficient to justify violating the right? Or perhaps someone’s list of rights was whatever liberal orthodoxy of the time considered important? Remember, it wasn’t that many years ago that a liberal doctrine was that states had the right to force employers to discriminate based on sex.
In regard to what Art I, Sec 8 & the 2nd Amendment are referring to when they mention the “Militia,” I would like to point out that most of the constitutions of the various States in the Union explicitly state that all able bodied men between the ages of (usually) 18 & 45 are BY DEFINITION members of the State militia. Thus, for the Governors or for the President to call out the militias of the various States, all of those men are potential recruits.
This was also the case in the early days of the Union. Most States were leery of the new Constitution of 1787 and reserved the right to withdraw if they felt that their rights were being threatened. What better way to guarantee that reserved right of secession than a populace that owned & knew how to use firearms? Indeed, firearms capable of being turned on the Federal government if need be. Thus, every able bodied man was expected to be aware that citizenship in his State entailed the requirement that he be willing & able to defend the Union &/or the State.
(Also remember that until the imposition of the 14th Amendment there was no such thing as “United States citizens.” You were a citizen of the State in which you resided.)
My aimpoint is a little higher. I’m going for the head shot.
The Federal government is on the verge of forcing ALL citizens to buy health insurance. Eventually, Congress will flip and Conservatives can use that precedent to Force ALL citizens to buy a handgun. Just like with health care, there will be government assistance with the financial burden.
Sauce for the Goose is sauce for the Gander.
Arms = weapons carried and operated by one individual.
Ordinance = weapons requiring a crew of individuals to operate effectively.
The Founders understood the difference,but others clearly do not.
Small arms = any firearm firing ammunition under 20mm.
Ordinance = everything else.
I wish I had a dollar for every argument I’ve had with generally well meaning but misinformed people who don’t know the difference and make the “well then why isn’t everyone allowed to have a cannon?” argument.Or the ones who say “but they didn’t have assault weapons back then,so how can they be covered by the 2nd amendment.” Well they didn’t have radio or t.v. either,does the use of these by the press fall under 1st amendment protection,or is it just printed media and public speech that qualifies for that?
I’d like to present a proposition. The argument can be made that much of the NRAs strong support for gun rights are fighting a ‘slippery slope’ argument against the erosion of gun rights.
I wonder that if a constitutional amendment was implemented to clarify and guarantee concealed carry and ownership of all pistols and rifles up to .50 caliber in exchange for the forgoing of automatic weapons and larger crew served weapons and explosive weapons. Maybe add a clause for future allowance and restriction of similar weapons as they are developed.
Could both sides agree and end the fight?
It seems the current road of interpreting the existing law (constitution) through the clauses mentioned elsewhere in the comments might open a big can of worms.
Agree on a new amendment as I sketched out above and these other issues go away.
Again, would both sides compromise or are the anti-gun folks determined to disarm us?
I am a NRA member and gun owner.
Mr. Davis, You might also find the text of the Militia Act of 1792 interesting. The federal definition of militia membership is not terribly different today, excluding the racial requirement. See also 10 USC 311, last revised in 1956.
Of interest are two other items that most people don’t talk about with the 2nd amendment. The first is the Militia Act of 1903 (gone over at Strategy Page) which puts all American men between 17 and 45 into the unorganized militia, which is blanket coverage and to be recognized as such.
The second part, and part of this, is Art. I, Sec. 10, paragraph 3:
It is the last part which is the exemption to the States to actually do these other things if they are invaded or threatened that the States then have full sovereignty to protect themselves. To have that ability the States must have militia ability as is mentioned in Amendment II and brought up in the Heller decision (pp. 22-27). The decision then continues on looking at the history of the right to keep and bear arms (starting in B) and a lengthy discussion on attempts to eat away at that right not only in England but also in post-Civil War America, which is of extreme interest as Amendment XIV was made to enforce the privileges and immunities at the National level to the State level so as to ensure the rights of all citizens as part of the militia privilege (which is not the modern day concept like the driving privilege, but the self-evident right to form militias to defend one’s State and Nation which one is privileged to be a part of as a citizen). Not only self-defense outside the militia, but defense of State and Nation via the militia are addressed. That right to self-defense is also self-evident as we invest the negative liberty of war (as seen by Grotius) in our State and Nation, but the positive liberty is retained by us as individuals (as talked about by de Vattel).
The Law of the Sea is a different matter as it relates to the basis of our modern understanding via the Black Book of the Admiralty, which was a regularization of Roman Trade Law that still existed in a variety of locations after the retreat of the Empire. Moving forward to Grotius, the concept of self-defense at sea is addressed as a necessary means to avert the bane of Private War when on the sea done by Pirates. As your ship is the territory of your Nation, its laws are sovereign while on the High Seas (or within the reaches of the High Seas under US law which includes those waters not encompassed via a headland) and are thusly to be defended. Active war via the Letters of Marque and Reprisal are to go against those Private enemies that make war upon a Nation (or its citizens and their companies) that cannot be held to account by the civil law due to their reverting to the savage Law of Nature (as talked about in Blackstone’s Commentaries on the English Common Law). Thus the Nation can grant private citizens the right and give them writ to exact economic punishment on a 1:1 scale as that is the only form of justice those under the Law of Nature recognize. That understanding, pre-Founding, is one that was understood and the rendering of economic gains by those doing the fighting was part of the tallying to ensure that proper punishment had been put upon those Private enemies that cannot be brought to civil justice. Such is the Admiralty Law that it is universal in recognition and those that contravene it are liable for any Nation to bring them swift martial justice if no other may serve as those breaking it place themselves above all law, above all society, and make war as they please without a sovereign grant from any society.
It is important to recognize that as far back as the 13th century (as talked about in Bracton), the concept of the civil law not being able to cover all venues was an important one. While most laws of England were unwritten in that era, the conception of the private law being the basis for the public law meant that the Law of Nations was created by how we would join in marriage and recognize that curtailment of certain natural liberties were necessary to create society. Our ability to form militias, indeed to retain the positive right of self-defense and defense of family and property comes from the Law of Nations as the basis for all other law. Public law was that which was most widely agreed-upon, and put together only with the concurrance of all levels of society and government, with the imprimature of the Sovereign as the last piece to make it scripted law. What Bracton urged was the written results of judgments, so that judges could regularize the implementation of the law and recognize the variations of it by region and social organization. Today we now invert that natural order, from the bottom up, and try to enforce Public Law that does not have wide concensus nor agreement at the lowest levels upon those areas by the highest levels of the Nation. When we do that we forget that we make the law as citizens and voluntarily submit to it as free people. When the law is impressed from the top, from the National level, then we are subjects only and dictated to by those least representative organs of the body of society. That is not descriptive of liberty, but tyranny, and a free people have the right to keep and bear arms to prevent tyranny and protect themselves at all times.
It’s in the Constitution, Jackasses ! !
In regard to what Art I, Sec 8 & the 2nd Amendment are referring to when they mention the “Militia,” I would like to point out that most of the constitutions of the various States in the Union explicitly state that all able bodied men between the ages of (usually) 18 & 45 are BY DEFINITION members of the State militia. Thus, for the Governors or for the President to call out the militias of the various States, all of those men are potential recruits.
However, that also means that the governors are free to ignore the militia, and even, under the pretense of organizing the militia, prohibit you from being armed on duty. (You’re a cook, citizen Davis.) Fortunately, the Second Amendment isn’t limited to the militia. It protects a right of the people–generally read in the Constitution to refer to individual rights.
I’d like to present a proposition. The argument can be made that much of the NRAs strong support for gun rights are fighting a ’slippery slope’ argument against the erosion of gun rights.
I wonder that if a constitutional amendment was implemented to clarify and guarantee concealed carry and ownership of all pistols and rifles up to .50 caliber in exchange for the forgoing of automatic weapons and larger crew served weapons and explosive weapons. Maybe add a clause for future allowance and restriction of similar weapons as they are developed.
Could both sides agree and end the fight?
No, because the gun control crowd has fought against concealed carry everywhere that it has been allowed. When we have proposed replacing existing laws that allow unlimited discretion in issuance of permits (originally, so that there was a way to disarm racial minorities) with strictly defined laws, the gun control crowd has fought us on that. The gun control crowd has repeatedly made it clear that their objective is a complete ban on handguns, and only limited permission to own sporting long guns.
What we are seeking with the Chicago suit, as we did with the D.C. suit, is a right of law-abiding adults to own handguns in their own homes. D.C. was even more outrageous–making it unlawful to have a gun loaded in your home for self-defense–and D.C. actually prosecuted someone who shot a criminal who was kicking in his door–because he had the gun loaded BEFORE the criminal started kicking in the door.
Eventually, Congress will flip and Conservatives can use that precedent to Force ALL citizens to buy a handgun.
They already have that authority. See the Militia Act of 1792–never successfully challenged in requiring members of the militia to own and keep firearms and ammunition.
A number of communities around the country have local ordinances requiring gun ownership. I don’t think that this is wise–there are people who can legally own guns, but probably should not.
Thanks for your response. Just to push a bit you a bit further, it sounds as if you’d be unsatisfied if the Court incorporated the Second Amendment against the states but decided challenges on the Rational Basis test.
You’ve demonstrated your excellence as a Constitutional scholar. Would you mind writing an amicus brief explaining why the Second Amendment is entitled to Strict Scrutiny?
.
Hellfish #37
No deal. The reason is that this deal is offered only after fun rights won the arguement that it is an individual right. The anti8 gunners wanted to ban all guns like DC. Bo Dc resident could buy a gun since 1976. So where were all the gun control willing to compromise and give back rights?
The fact is every regulation has been to restrict for 30 years. We are now winning and we are supposed to compromise. Besides you have no authority to enforce the compromise.
My suggestion revoke the 1934 act and the 1958 act and the 1986 actoon the federal lever.
The revoke all registration, ammo regulation that was just signed in California, for all the states.
We will win the incorporation and work to restore total ability to people to buy without hassle, delay, fingerprinting a legal weapon.
So when the Brady group and MAiG and all the Democrats revoke the 1934 and 1968 and 1986 federal acts and the states laws and stop the laws for ammo imprinting, the ammo bans and guns bans, then maybe we will talk about compromise.
Thanks for your response. Just to push a bit you a bit further, it sounds as if you’d be unsatisfied if the Court incorporated the Second Amendment against the states but decided challenges on the Rational Basis test.
Yes, because that would be inconsistent with the remainder of case law about fundamental rights. And the rational basis test is increasingly flopping loosely in the wind after Romer v. Evans.
You’ve demonstrated your excellence as a Constitutional scholar. Would you mind writing an amicus brief explaining why the Second Amendment is entitled to Strict Scrutiny?
I would argue that the whole division in these different levels of scrutiny is fundamentally flawed. It developed in the 1960s, derived from note 4 of the Carolene Products (1938) case–which didn’t actually support the differing levels.
I’m already finishing up two law review articles right now, working on amicus briefs in this case–but I also have to prepare for teaching State & Local Government class on Saturday. If I get a full-time job again, then I can’t work on this stuff with the energy that I am doing now. If only what I did was important enough that someone would pay me a modest salary and benefits to do it. But alas, this stuff just isn’t important to anyone with any money.
That’s exactly what the WI Supreme Court did, in light of their recently-added right to bear arms. I forget the case (you undoubtedly know about it) but the Court basically said, since now we have a constitutional right to bear arms, there has to be some effective way for citizens to do so–ergo if concealed carry is banned by statute then open carry must be presumed to be legal.
This hasn’t stopped the Police Chief of Milwaukee from threating to act violently against peacable open carries, but then again he’s a big-city chief of police, so what would you expect?
I would argue that the whole division in these different levels of scrutiny is fundamentally flawed. It developed in the 1960s, derived from note 4 of the Carolene Products (1938) case–which didn’t actually support the differing levels.
A little clarification. U.S. v. Carolene Products (1938) acknowledges that Congress may regulate commerce as long as that regulation rests “upon some rational basis within the knowledge and experience of the legislators.” But the footnote 4 there acknowledges that an enumerated constitutional right is not in the same category. The varying levels of scrutiny derive from that assertion of a negative.
We will win the incorporation and work to restore total ability to people to buy without hassle, delay, fingerprinting a legal weapon.
I would not get too wildly enthusiastic about scrapping all such regulations. There are categories of regulation that are likely to survive challenge, as long as they do not fundamentally interfere with the rights of law-abiding U.S. citizens to keep and bear arms. A background check requirement to verify that a person is:
1. A U.S. citizen or permanent resident.
2. Of legal age.
3. Not adjudicated mentally incompetent.
would certainly survive. In support of that, fingerprinting would certainly survive as well. Even registration, while utterly ineffective, is almost certainly constitutional.
Quite a bit of the other useless garbage won’t survive. If the courts show enough courage, they will recognize that the scary-looking semiauto bans are impossible to justify on public safety grounds (they just aren’t that often criminally misused), and impossible to defend even on the tyranny control basis that Justice Stevens’ dissent in Heller argued.
No–incorporation mandates statism. The Founders never believed that people needed the protection of the Bill of Rights from their local governments–because local governments can be controlled locally by votes or by voting with your feet. It was the FEDERAL government which needed reining in by the Bill of rights. It was never meant to apply to the states. But now, through the illegitimate tool of incorporation it does, and the result is homogeneity and absolute slavery to the whims of SCOTUS. Incorporation has produced the exact opposite of liberty and rendered moot the concept of local governments as laboratories of democracy. People should be free to set up their local governments as they see fit–not as restrained by the overprotective hands of SCOTUS. To even suggest that incorporation is a “an anti-statist philosophy” is madness. It has destroyed federalism–how can it possibly be “anti-statist?”
“Because Art. IV, sec. 2 of the U.S. Constitution already said: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
Huh? Besides being circular, this is just silly. Even my famous and famously liberal con-law professor had better sense than to trot this out as a justification for incorporation. Of course, she assumed we were well-educated enough to have read, or at least known of, Hamilton’s discussion of P&I in the Federalist 80.
What do the gang problems of 1929 and 2009 have in common? The gangs were/are being financed by the American Government.
Prohibition.
Tired of LAT working against you? (Well give then one less reason anyway)
End Prohibition
Under Due Process, Incorporation is a given. I would expect Incorporation to pass under Due Process that was implied in Heller. However under Priviledge and Immunities that will open an ability to resist all sorts of government regulation not related to gun rights.
It is my opinion that the reason SCOTUS picked McDonald was to listen to arguments on why P&I would apply to allow another tool to to resist the continuing tyranny of petty laws that chip away at our freedom.
For instance take Health Care. Traditionally Americans had the right to purchase the healh care they wanted. Under the current bills that ability is denied that would be a violation of the P &I of Americans to choose and pay for the health care of their choice, even if that is no health insurance.
I also agree that registration would be Constitutional currently but may not if P &I was resurrected.
If I read P&I right is that what freedoms American have traditionally enjoyed can not be removed.
I am not under an illusion that cases that revoke 1934 or 1968 will be successful. That is best done legislatively. However I so think the 1986 regulation could be successfully challenged and won.
Another clue to the thinking of the Founders is that the Constitution allows the government to establish the Navy budget over as many years as it needs to, but can only budget the Army for 2 years. The reason is that the government finds it much harder to use the Navy to establish a dictatorship than by marching soldiers down the street.
Murdock v. Pennsylvania would appear to make licensing schemes unconstitutional (at least to “keep” arms). That said, the government might place a million dollar tax on the sale of guns and or ammunition.
“A state may not impose a charge for the enjoyment of a right granted
by the federal constitution… The power to impose a license tax on
the exercise of these freedoms is indeed as potent as the power of
censorship which this Court has repeatedly struck down… a person
cannot be compelled ‘to purchase, through a license fee or a license
tax, the privilege freely granted by the constitution.”
Justice Douglas was a drunk and an ass, but he did get this one right.
There are categories of regulation that are likely to survive challenge, as long as they do not fundamentally interfere with the rights of law-abiding U.S. citizens to keep and bear arms…Even registration, while utterly ineffective, is almost certainly constitutional.”
Do you have an opinion on what levels of licensing are likely to survive, and what would be a “fundamental interference”? Here in New Jersey, for example, we have a registration system that requires an individual permit for each handgun purchase, which requires fees, character references, and multiple-month waits before a permit is granted. This doesn’t ultimately _prevent_ me from buying a handgun (our requirement that my employer also return a character reference might, in that an anti-gun employer has a de-facto veto over the purchase, but that’s a separate question), but it places a fairly extraordinary burden on the right. Is there any precedent for how much burden short of an outright ban is likely to survive scrutiny?
a sea change, into something rich and strange
with reference to the LA Times editorial !!
11. Clayton E. Cramer: “I presume that biblio44 engages in the nasty remarks that he does is because he doesn’t know enough about the subject to engage in intelligent debate.”
Guilty as charged! But thank heavens Clayton has readers like Euler, who can engage in intelligent debates:
10. Euler: “A case could be made for citizens to own artillery and rockets.”
Great post. Thanks much. Added benny: It led me to the Chicago Gun Case site
The Founders never believed that people needed the protection of the Bill of Rights from their local governments–because local governments can be controlled locally by votes or by voting with your feet. It was the FEDERAL government which needed reining in by the Bill of rights.
It was, but after the Civil War, Congress believed that the states could not be trusted–because of the Black Codes.
It was never meant to apply to the states. But now, through the illegitimate tool of incorporation it does, and the result is homogeneity and absolute slavery to the whims of SCOTUS.
It isn’t illegitimate. It is the result of amending the Constitution through the 14th Amendment. I find selective incorporation absurd, but incorporation was clearly intended by the authors of the 14th Amendment.
To even suggest that incorporation is a “an anti-statist philosophy” is madness. It has destroyed federalism–how can it possibly be “anti-statist?”
Because it limits the power of the states to violate the rights of individuals. I don’t dispute that it has sometimes been used the other way–but tell me, is protecting freedom of speech and the press, prohibiting double jeopardy, and requiring warrants for searches, statist?
But thank heavens Clayton has readers like Euler, who can engage in intelligent debates:
10. Euler: “A case could be made for citizens to own artillery and rockets.”
He’s making a statement about how to read the Second Amendment. I’ve made it clear that some weapons are outside the definition of “arms” of that time. I would agree that this is probably bad policy, regardless. But in what way is Euler’s statement an example of unintelligent debate? Just because you disagree at either a historical or policy level?
Do you have an opinion on what levels of licensing are likely to survive, and what would be a “fundamental interference”? Here in New Jersey, for example, we have a registration system that requires an individual permit for each handgun purchase, which requires fees, character references, and multiple-month waits before a permit is granted. This doesn’t ultimately _prevent_ me from buying a handgun (our requirement that my employer also return a character reference might, in that an anti-gun employer has a de-facto veto over the purchase, but that’s a separate question), but it places a fairly extraordinary burden on the right. Is there any precedent for how much burden short of an outright ban is likely to survive scrutiny?
I think there’s a strong case that the Second Amendment is not so dramatically different from freedom of speech, or of the press. The ACLU’s definitions are ahistorical, but that prior restraint on speech is unconstitutional is one area where I agree with them, because the evidence of the Constitutional period is clear on this. And oddly enough, many commentaries and court cases of the period draw the analogy between freedom of the press and the right to keep and bear arms: you are free to operate without prior restraint, being responsible for the abuse of that right. What licensing is there for printing presses?
The reason is that the government finds it much harder to use the Navy to establish a dictatorship than by marching soldiers down the street.
At least, that was the case until the Navy got aircraft carriers. The Attorney-General’s opinion that the Air Force wasn’t subject to the same funding timeline as the Army was clearly wrong.
Tolbert:
“The only people who seem to have a problem with the clarity of the statement are those that posit such nonsense as “it depends on what the meaning of the word ‘is’ is””
Not at all. Look at some of the responses here – claiming that to understand the amendment we have to travel back in time and divine the meaning of “arms” as it was understood at the time of writing (although “arms” vs “ordnance” is a very dodgy claim, and the “Adequate control” doctrine doesn’t appear anywhere in the constitution itself – that imposes a meaning of its own)
So even the meaning of “arms” is apparently fluid enough to cause a massive problem to the amendment’s interpretation. So here’s my question: why the heck doesn’t the amendment specify any of it? If it was a case of naivety, not having the advantage of 200+ years of judicial experience to warn them of the problems, then why not admit that and clarify it NOW? That’s what more recent specific legislation has had to do in practice anyway.
I also note that nobody here has made any mention of the “well regulated militia” clause. One assumes they must have meant something when they wrote that, but modern interpretations just ignore it. Apparently it was just a note about the weather, having no relevance to the application of the amendment itself. That’s a bit odd.
And tolbert reckons there’s on problem with its meaning.
So here’s my question: why the heck doesn’t the amendment specify any of it? If it was a case of naivety, not having the advantage of 200+ years of judicial experience to warn them of the problems, then why not admit that and clarify it NOW? That’s what more recent specific legislation has had to do in practice anyway.
Not naivete. The vast majority of Americans still support the right therein. There is a loud, rich, and powerful minority that wants to pretend that the concept of popular uprising is out of date, but that’s just whistling past the graveyard. If even 10% of the American people decided to pull out their rifles and overthrow the government, it would happen. The only way to use a professional military to stop this would rapidly turn much of the rest of the population, and much of the professional military against the government.
“Specific legislation,” as you put it, lacks the authority of amending the Constitution–because the gun control crowd knows that they could never get the supermajorities required to significantly limit the right to keep and bear arms. It simply would not happen. The last time that there was even a majority in support of banning handguns was 1959–and today, it’s far lower.
One could make the same argument about the First Amendment and virtual child pornography–but in that case, there is “specific legislation” that Congress kept passing, and the Supreme Court keeps blocking. And I’m sure that you will be full of reasons why the Court did the right thing in that case, even though there is no evidence that the Framers never intended to protect obscene materials.
I also note that nobody here has made any mention of the “well regulated militia” clause. One assumes they must have meant something when they wrote that, but modern interpretations just ignore it.
We don’t ignore it. The history of the Amendment makes it clear that this was a statement of intentions–that the national government would primarily rely upon the militia, not a large standing army. Some of the state requests for a Bill of Rights actually specify that a standing army not be raised in peacetime except by a majority vote of both houses. Madison took those proposals, and then watered them down to something with no actual force–sort of a “it would be nice.” It does not in any way limit Congressional power. Madison actually discusses in his introductory speech for the Bill of Rights that his goal for it is not to change any of the federal vs. state power relationships that some of the Antifederalists were asking for, but to make sure that concerns about the national government violating individual rights were properly allayed.
Justice Stevens’ dissent attempted to argue that the the well-regulated militia clause meant that the right to arms was limited to collective political violence–a method of making it possible for the people to rise up against a tyrannical government–and then tried to argue that therefore the government had the authority to disarm the people, which would make such a revolution impossible. That doesn’t make any sense, and because it is based on Nathan Kozuskanich’s incorrect claims about the Pennsylvania Constitution’s RKBA clause, it isn’t even historically correct.
I think I misunderstood you at post 50. When you mentioned registration as a useless but Constitutionally defensible restriction, I thought you meant registration of _purchasers_, not of guns (in hindsight, you would presumably have said “permitting” or somesuch).
You’d speculate, then, that “firearms IDs” and purchase permits (used at least by NJ and NY) are at least somewhat likely to ultimately be struck down? There are obviously never any guarantees, but I suspect those of us in the most draconian states may actually have quite a lot to gain here even if people in most freer states don’t see too much change.
ref #50: registration is not “useless” as far as the antigun types are concerned. As far as I can find, weapon registration has always been followed by confiscation. That is its ONLY usefulness. It serves no other government purpose. As an example, Calif did this to a particular type of “assault rifle” after their first gun ban/regestration (an SKS with the AK magazine mod). Note: as a reaction to this, the registration response to Calif’s next “assault weapon” ban was estimated by the DOJ to be approx 5% of what they expected. Funny, I never saw any mention in the press about this flagrant nose-thumbing at the state. Wonder how the bureaucrats explained this?
As far as I can find, weapon registration has always been followed by confiscation.
Not always, but often enough to be worrisome. The bigger problem is that convicted felons, and others who may not lawfully own a gun, cannot be punished for failing to register. Requiring a person prohibited from gun ownership to register a gun is a Fifth Amendment violation, decided in U.S. v. Haynes (1968). (More details can be read here. Only those who can legally own a gun can be punished for failure to register.
I think I misunderstood you at post 50. When you mentioned registration as a useless but Constitutionally defensible restriction, I thought you meant registration of _purchasers_, not of guns (in hindsight, you would presumably have said “permitting” or somesuch).
No, I meant that as long as gun registration was not expensive or complicated, it does not infringe on the right to keep and bear arms. For example, if gun registration cost $50 a gun, that would certain infringe on the right, in the same way that requiring you to pay $50 before you could speak in public on political matters would be an infringement on freedom of speech. Gun registration while useless for preventing crimes other than gun control violations, does not intrinsically prevent you from owning a gun. It’s just not effective for solving actual crimes. Most people, even those supporting of moderate gun control, start to laugh when they find out about the Haynes decision, and how useless gun registration is.
64. Clayton E. Cramer:
10. Euler: “A case could be made for citizens to own artillery and rockets.”
“But in what way is Euler’s statement an example of unintelligent debate?”
Right again, Clayton! It’s not unintelligent, it’s nuts!
In fact at present time private citizens do own artillery and tanks. Now they may be subject to zoning regulation and other public safety laws.
Historically private citizens in the War of Independence did have ships and then armed them with cannon. Those are crew served ordinance. The normal was that if a person had money and ability they could own any type of armament.
The real restriction is simple liability and economics. It cost a lot to have artillery and tanks. Plus there are often a slew of local regulations that make it hard.
As long as ownership of these items are rare, the governments are not too concerned.
Any arms manufacturer that sells to the federal and states governments own the product before they are sold and that is private ownership.
Fighter jets and ships are under contract and are owned by the government. It is only when decomission they can get into private hands and that is very costly. Huge Navy ships cost a bundle to maintain and even as museums they have been hard to afford.
So the means of ownership are not prevented by law but by economics.
Great article citing the important points. Here is another 120 million people own firearms of some sort, many multiple firearms. It’s a numbers game, and one that Obama refused to engage in right now. Sure, he’d love nothing better than to disarm the country. Can you imagine the level of abuse the “elite” ruling class like Obama, Schumer and Relosi would foist upon us if they have no fear of an uprising, even locally? It will be an interesting exercise in law, but in reality, as long as we own guns, they can only do so much to us. They know it, we know it and the founding fathers understood that one fact better than any other, as it was primarily personal weapons that held the line until the army could get organized.
I wrote a book about things being different in the near future. I wrote it as a lark, asking what would it take to have the nation overwhelmed and controlled by a rogue government. I wrote it in 1997 for fun. I got most of what it would take right. So far, the left has been following the script I thought up too closely for my comfort. I’m publishing the book now.
http://www.revoltthebook.com
I hope it stays a political thriller and not become a history text. But it could. Sadly, with these guys…it could.
“But in what way is Euler’s statement an example of unintelligent debate?”
Right again, Clayton! It’s not unintelligent, it’s nuts!
You disagree with it as a policy, and I confess that I worry a bit about nuts with artillery. But since we do allow private citizens to own artillery (and only very occasionally does someone act stupidly with it), what makes a debate about this policy “nuts”? Or is anyone that disagrees with you on policy “nuts”?
The Soviet Union took that approach: political dissidents were mentally ill–or they wouldn’t be political dissidents.
MR.CRAMER:Given WACO,GULAGS,Obama’ Maoist and Stalinist commissars,and his intention to suppress freedom of speech,
artillery,RPG’s mortars IED’s and other weapons typically used by guerrillas, should get constitutiional protection.BTW:These weapons can be legally owned in Switzerland, and we know what a dangerous, trigger-happy place that is!Don’t bother arguing with BIBLIOT:his IQ,(44),makes it unlikely that he can understand logic,sanity,and freedom.Stalinists know that to win and kill, they need an unarmed populace.
To all,
I wish to state that the Supreme court, in the Slaughterhouse Cases, held that because of the Fourteenth Amendment there were now two separate and distinct citizens under the Constitution of the United States; a citizen of the United States, under the Fourteenth Amendment and a citizen of the several States, under Article IV, Section 2, Clause 1 [FOOTNOTE]:
“We think this distinction and its explicit recognition in this Amendment (the 14th Amendment) of great weight in this argument, because the next paragraph of this same section (first section, second clause), which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several states. The argument, however, in favor of the plaintiffs, rests wholly on the assumption that the citizenship is the same and the privileges and immunities guaranteed by the clause are the same.” 83 U.S. 36 (1873), page 74.
And:
“In the Constitution of the United States, which superseded the Articles of Confederation, the corresponding provision is found in section two of the fourth article, in the following words: ‘The citizens of each State shall be entitled to all the privileges and immunities of citizens OF the several States.’ ” 83 U.S. 36 (1873), page 75.
The last was later reaffirmed in Cole v. Cunningham:
“The intention of section 2, Article IV (of the Constitution), was to confer on the citizens of the several States a general citizenship.” Cole v. Cunningham: 133 U.S. 107, 113-114 (1890).
The privileges and immunities of citizens of the several states are those described by Corfield, cited in the Slaughterhouse Cases. This is reaffirmed in Hodges v. United States:
“In the Slaughter House Cases, 16 Wall. 36, 76, in defining the privileges and immunities of citizens of the several States, this is quoted from the opinion of Mr. Justice Washington in Corfield v. Coryell, 4 Wash. Cir. Ct. 371, 380.” Hodges v. United States: 203 U.S. 1, at 15 (1906).
So there are now two citizens under the Constitution of the United States. One needs to find out information on both. For a citizen of the United States that is easy. Just about anywhere. For a citizen of the several States one will have to begin here:
http://citizenoftheseveralstates.webs.com/index.htm
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FOOTNOTE
The Effects of the Fourteenth Amendment on the Constitution of the United States
http://www.australia.to/index.php?option=com_content&view=article&id=15882
Also,
A Look At Corfield (On Citizenship)
http://www.australia.to/index.php?option=com_content&view=article&id=16868
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To all,
I am writing to inform you that the links I provided in Comment 78 (Dan Goodman Dec 22, 2009 7:41pm) no longer work. The new locations for them are:
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FOOTNOTE
The Effects of the Fourteenth Amendment on the Constitution of the United States
http://www.australia.to/2010/index.php?option=com_content&view=article&id=327
Also,
A Look At Corfield (On Citizenship)
http://www.australia.to/2010/index.php?option=com_content&view=article&id=331
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There is also the following which I think would be appropriate.
Comment on Petitioner’s Brief: McDonald v. City of Chicago
http://www.australia.to/2010/index.php?option=com_content&view=category&layout=blog&id=91&Itemid=126
http://www.americanchronicle.com/articles/view/136777
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